P L D 1982 Lahore 248 (PLP)

The respondent, Ch. Muhammad Iqbal, filed a suit against the petitioner, Masood Akhtar. One of the summonses issued to the petitioner in that suit was for 13th May, 1974, when Sh. Muhammad Naseem, Advocate, entered appearance, before the trial Court, on his behalf by filing a memorandum of appearance. Thereafter, neither the petitioner nor his counsel cared to appear before the said Court with the result that an ex parte decree was passed against the petitioner on 26th June, 1974. On 23rd October, 1974, the petitioner made an application for setting aside the ex parte decree stating that he was not served in the suit and that Sh. Muhammad Naseem, Advocate, bad no authority to appear as his counsel. The application was opposed by the respondent contending that it was time barred and that there was no sufficient ground to set aside the ex parte decree. Findings on both these points were recorded by the learned trial Court against the petitioner. The application was, therefore, dismissed. The appeal preferred by the petitioner also met the same fate. He has, therefore, come up in revision to this Court.

2. It was contended by learned counsel for the petitioner that in the memorandum of appearance it was not stated by Sh. Muhammad Naseem, Advocate, that he had been authorised by the petitioner to appear on his behalf and, therefore, the memorandum of appearance did not satisfy the requirement of law as set out in clause (c) of sub‑rule (5) of rule 4 of Order III of the Code of Civil Procedure. For this reason, according to him, the memorandum of appearance was a nullity in the eye of law and deserved to be ignored. He did not cite any authority to support his plea.

3. The memorandum of appearance filed in the present case reads as follows ;‑ "Civil Suit No. 9 of 1974. The parties are as under :‑ Masood Akhtar son of Fazal Hussain, Caste Qureshi resident of Gujranwala‑‑Plaintiff. versus . Ch. Muhammad Iqbal son of Sultan Ahmed, caste Gujar resident of Theri Sansi, Tehsil and District Gujranwala‑Defendant. Suit for possession of land through pre‑emption. File received from the Court concerned. Before the Senior Civil Judge, Ciujranwala. Ch. Muhammad Iqbal v. Masood Akhtar. Suit for pre‑emption. Memo of appearance. I hereby appear on behalf of Mr. Masood Akhtar Defendant.". It gives a clear indication to the effect that Sh. Muhammad Naseem, Advocate had been authoried by the petitioner to appear for him although a statement to this effect has not, in so many words, been recorded in the memorandum. It is not disputed that; subsequently Sh. Muhammad Naseem had also file a regular power of attorney on behalf of the petitioner. This confirms the view that the was also authorised to put in his memorandum of appearance in anticipation of the power of attorney.

4. There is no affidavit or statement by Sh. Muhammad Naseem, Advocate, that he was not asked by the petitioner to appear before the trial Court by filing the memorandum in question. Sh. Muhammad Naseem is not dead but, as informed by the learned counsel, he died long after the making of application for setting aside the ex parte decree. The petitioner had ample opportunity to procure his affidavit of examine him as a witness but had failed to do so. All this justifies the drawing of an adverse inference against the petitioner.

5. In his application for setting aside the ex parte decree, it was first stated by the petitioner that his counsel did not inform him about the date of hearing but thereafter he scored out the said statement. This gives a clear. indication of fact that he had a counsel to look after the suit even before he had executed the aforesaid power of attorney.

6. The appearance put in by Sh. Muhammad Naseem by filing the memorandum in dispute had resulted in ex parte decree against the petitioner. This was a great set‑back suffered by the petitioner due to the above act of Sh. Muhammad Naseem. If he had appeared without any authority, the petitioner would have proceeded against him for having been guilty of profes sional misconduct, etc. but instead of so doing, he regularised his appointment as counsel by giving him the power of attorney. This leaves no room for doubt that Sh. Muhammad Naseem was authorised by the petitioner to appear as his counsel and that his omission to mention in the memorandum that he was so authorised had occurred either on account of a clerical mistake or it was felt by the said counsel that in view of what had been stated in the memorandum it was not necessary to make a mention of the said authorization.

7. In view of what has gone above, I am convinced that Sh. Muhammad Naseem was authorised by the petitioner to plead for him and his, (Sh. Muhammad Naseem's) failure to specifically state in the memorandum of appearance that he was so authorised by him (petitioner) is of no consequence. Discrepancies like the one noted in the memorandum in dispute were also found in the powers of attorney filed in the cases reported as Khaire v. Nathu and others (1), Ram Sarup v. Sahu Bhagwati Prasad and another (2), Abdul Rauf Ahmed and others v. Nani Bai and others (3), Kodi Lal v. Ch. Ahmad Hasan and others (4), Shambhu Nath v. Badri Das (5), Mangal Singh and another v. Babu Singh and others (6) and Malik Sajawal Khan v. The Deputy Commissioner. Sargodha and another (7) but they were all overlooked for being of no importance.

7. What emerges from the foregoing discussion is that there was nothing wrong with the appearance of Sh, Muhammad Naseem on behalf of the petitioner and. therefore, he (petitioner) cannot avoid the legal consequences thereof. Resultantly, this civil revision fails. It is dismissed in limine. s. Q. Petition dismissed. (1) A I R 1920 Lab. 212 (2) A I R 1936 All. 636 (3) A I R 1955 Nag. 276 (4) A I R 1945 Oudh 200 (5) A I R 1921 All. 210 (2) (6) A I R 1932 Lab. 134 (7) P L D 1968 Lab. 527